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Reasonable adjustments - duty of service provider - provision of lift to assist access to building

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The Claimant was a young man who suffered from Duchenne Muscular Dystrophy. He had been using an electric wheelchair from an early age. He had a bank account with the Royal Bank of Scotland at its main branch in Sheffield. The main branch was in a listed building and access to all of the entrances was gained by a flights of stone steps. The branch was therefore inaccessible to wheelchair users.

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Two potential adjustments were before the court. The first proposed adjustment was installing a lift in the lobby area and the second was installing a lift in the banking hall. The Respondent did not raise an objection on the grounds of cost.

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His Honour Judge Dowse, at first instance declared that the Bank had discriminated against the Claimant contrary to s.19(1)(b) and awarded the Claimant £6,500 for injury to feelings. His Honour also ordered the Bank to install a platform lift in the banking hall. The Bank appealed the order to install the lift but not the award for injury to feelings.

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Held

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The Bank contended that the Judge had failed to properly identify the services that the bank was providing and had therefore failed to properly identify the adjustments that were required. The Court of Appeal rejected the Bank's contention. Lord Justice Dyson stated that the service in question was the provision of banking facilities at the main branch and that unless a platform lift was installed in the main branch, persons whose disability required them to use wheelchairs could not gain access to the main branch and could not therefore make use of the facilities that were available to able bodied persons.

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The availability of the banking services elsewhere was relevant to the reasonableness of the adjustment not to whether the duty to make adjustments arose.

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The Court of Appeal also upheld the HHJ Dowse's judgment that installing a platform lift would have been a reasonable adjustment. When finding that the bank had failed to make an adjustment HHJ Dowse made a number of references to the bank's failure to consider whether or not the installation of the lift was feasible. Lord Justice Dyson stated:

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"the judge should not have concluded that a breach of section 19(1)(b) and 21(2)(a) was proved by the Bank's failure to consider the [installation of the lifts], But it is clear that what he meant was that, by failing to consider the proposal, the Bank was not in a position to adduce evidence to show that the duty to make adjustments imposed by section 21(2) did not require it to remove the offending physical feature by [installing a lift]."

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The banks failure to consider the adjustment was therefore highly relevant to their ability to prove that the adjustment was reasonable. For instance, one of the grounds upon which the Bank argued that the adjustment was unreasonable was that the lift could not be installed on the banking floor without removing one of the conference rooms. However, since the bank had not really considered what effect removing a conference room might have on its business the Judge was entitled to conclude that it was reasonable to make the adjustment even though a conference room would be lost

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Lord Justice Dyson also set out a useful checklist for DDA claims contrary to s.19(1)(b) and 21(2):

1.Was the Bank a provider of services within the meaning of section 19(2)?

2.Did a duty arise under s.21(2) i.e. did the physical feature make it impossible or unreasonably difficult for disabled people, or a class of disabled people, to use the service?

3.If so, were there reasonable steps that should be taken to remove, alter, provide a reasonable means of avoiding, or a reasonable alternative method of service?

4.If so, did the Bank take those steps?

5.If not, did the failure to take those steps make it impossible or unreasonably difficult for Mr Allen to use the service?

6.If the answer to 5 is yes, is the failure to take the steps justified in accordance with s 20(4).

The respondent in this case suffered from vocal nodes which made it difficult for her to use her voice. The problem persisted over a number of years. Following an operation to remove the nodes in 1992, the respondent was given a strict management regime to follow by a speech therapist. As a result, when she returned to work with the appellants, she had to stagger her telephone calls, limit the number and length of her meetings, rest her voice during breaks, and take various other avoidance measures to preserve her voice. The vocal nodes did not recur after 1992. The respondent put this down to her strict adherence to the management regime. The appellants maintained that she had been cured.

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When the respondent subsequently brought disability discrimination claims against the appellants, the issue which arose at a preliminary hearing was whether she satisfied the statutory definition of disability. In particular, the tribunal had to consider the meaning of the work “likely” in paragraph 6(1) of Schedule 1 to the DDA 1995 which provides as follows: “An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.”

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The tribunal decided that the respondent did meet the statutory definition. It found that, on the balance of probabilities, if the respondent had stopped her strict management regime during the relevant period, the vocal cord nodes would have recurred and would have had a substantial adverse effect on her ability to speak.

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The Court of Appeal of Northern Ireland dismissed an appeal against this decision, Girvan LJ holding that the word “likely” in paragraph 6(1) did not mean “probable” but “[it] could well happen”. The appellant contended that this interpretation was wrong and appealed to the House of Lords.

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Held

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The Court of Appeal had applied the right test. The word “likely” in the context of paragraph 6(1) meant no more than “could well happen”. It did not mean “probable” or “more likely than not”. As pointed out by Lord Rodger (at paragraph 42):“Paragraph 6(1) applies to people who are undergoing…a continuing course of treatment or its equivalent. So it makes sense to interpret “likely” against that background. I would accordingly hold that it refers to the kind of risk of an impairment recurring (“it could well happen”) that would make it worthwhile for a doctor or other specialist to prescribe a continuing course of treatment to prevent it”.

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The same meaning should also be given to the word “likely” in the context of paragraph 2(2) of Schedule 1 which made provision for recurring conditions. In Latchman v Reed Business Information Ltd [2002] ICR 1453, the EAT had held that an effect was not “likely” to recur if the risk of recurrence was about 50%. That decision should therefore be overruled and dicta to the same effect disapproved.

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Comment

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This is a helpful decision for those faced with the often difficult task of predicting a medical outcome. As noted by Baroness Hale (at paragraph 70) witnesses from any branch of medicine will be far more comfortable with assessing the reality of the risk rather than putting precise percentages upon it.

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It is also worth noting that the word “likely” appears elsewhere in Schedule 1. Thus in paragraph 2(1), the effect of an impairment is a long term effect if it has lasted for 12 months or is likely to last for at least 12 months or for the rest of the person’s life. In paragraph 8, a progressive condition which has had some effect but not yet a substantial one, is to be treated as having a substantial effect if this is likely to result.

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Although Baroness Hale (paragraph 52) accepted that the House of Lords was not deciding the issue of the meaning of the word in these contexts, she did point out that it is usual for the same word to mean the same thing when used in the same group of statutory provisions. This should make life easier for claimants.

The Claimant succeeded in various types of disability discrimination claims against his former employer. The Tribunal found that the Claimant was entitled to claim for loss of earnings even during those periods that he was claiming disability allowance.

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The Respondent argued that this was wrong as a matter of law and that where a dismissed employee is awarded incapacity benefits after the termination of his employment the general rule is that the employee has to be regarded as incapable of work.

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Held

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The EAT dismissed the appeal. The Claimant satisfied the provisions set out in s.30A of the Social Security Contributions and Benefits Act 1992 which entitled him to “short term incapacity benefit in respect of any day or incapacity for work which forms part of the period of incapacity for work.”[NB this system of incapacity benefit was replaced from 27 October 2008 by the Welfare Reform Act 2007]

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There are two rates for claiming incapacity benefit.A different definition of incapacity for work applies to each of them. The definition of “incapacity for work” is in s. 30C of the 1992 Act. It is defined as a day on which a person is incapable of work.However, s.171B of the 1992 Act provides that within the 1st 196 days of the claim for benefit a person is deemed incapable of performing work if they are deemed to be incapable of performing work in their own occupation. This applied to the Claimant who was incapable of performing work in his own occupation but capable of performing other work.

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Since, during the 1st 196 days of the claim for incapacity benefit the Claimant was able to perform work outside his own occupation but was unable to find work, the Claimant was entitled to compensation from his former employer for that period.

Hiero v Changework Now Limited

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Meaning of disability - effect of medication - whether tribunal erred in failing to make a finding under DDA 1995, Sch 1, para 6(1) as to the impairment which would be present but for the medication.

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The Claimant had an anxiety condition diagnosed as dysphoria. He claimed that he had been turned down for a job when the Respondent learned that he had a disability. The Claimant's condition was diagnosed on 16 November 2007. It was stress induced. The Claimant took Fluoxetine daily.

The Tribunal at first instance found that he was not disabled. The Tribunal worked systemically throught the factors to be considered in the Guidance but failed to make a decision on para. 6(1) of Schedule 1 (which deals with the effect of medical treatment).

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Held

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The EAT considered that a dependence on Fluoxetine, taken to avoid the condition presented to the GP, indicated that the tribunal should have explored what the Claimant's disability would have been like without the medication. The EAT considered that there was sufficient information before the tribunal to have made the effect of medication an issue that required determination. Significantly the chairman's notes themselves recorded the issue as one that needed to be resolved. The EAT remitted the issue for consideration to a different tribunal.

Eastern and Coastal Kent PCT v Grey

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Reasonable adjustments, knowledge of disability and its effects, reliance on claimant's account of her disability.

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The Claimant suffered from dyslexia and was found to be disabled under DDA 1995, s.1. The Claimant was a well qualified nurse whose dyslexia was only diagnosed in 2005. She had reached the level of Junior Sister / Clinical Nurse Educator but was looking for ways to obtain promotion. She applied for another role with the Respondent as a community cardiac nurse. This role was at a higher grade.

In the application form the Claimant indicated that she had a "learning difficulty / disability" and applied for a guaranteed interview under the Respondent's "Positive about Disability" scheme. The members of the interview panel were not told about the Claimant's disability. The person overseeing the recruitment process was aware of the Claimant's disability but made no enquiries about it and gave the panel no guidance.

The Respondent asked all 9 candidates for the interview whether they required any adjustments. The Claimant decided not to ask for any as she was confident that she would be able to perform well at interview. She did not wish the panel to take an adverse view of her because of her disability.

In the interview the Claimant was required to draft a presentation in a short period of time using a laptop. She commented that she normally used special software but did not say why. The Claimant did not get the job because she did not score well at interview.

The Tribunal at first instance found that the Respondent was not entitled to avail itself of the knowledge defence in DDA 1995, s.3 because it knew or could be expected to know of the Claimant's disability .

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Held

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The Respondent argued that the tribunal had erred in its approach to the DDA 1995, s.3. The EAT held that an employer is exempt from the duty to make adjsutments if each of the following four matters are satisfied:

(i) the employer does not know that the disabled person has a disability;

(ii) the employer does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;

(iii) the employer could not reasonably be expected to know that the disabled person has a disability; and

(iv) the employer could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.

The EAT held that the tribunal had failed to consider all of the requirements (and particularly point (ii)) and so remitted the case to the tribunal for them to consider them.

Chief Constable of Dumfries & Galloway Constabulary v Adams

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Meaning of disability - night shift - whether normal day to day activity

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The Claimant was a probationary police constable who suffered from ME. The Claimant worked on 2 days during the day, 2 days on a back shift and night shifts.

He had mobility problems but these problems only occurred between 2am and 4 am at night. He walked at a slow pace, needed assistance or a hand rail to climb stairs and sometimes needed help undressing when he got home.

The Respondent argued that the act of carrying out a night shift was not a normal day to day activity.

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Held

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The EAT rejected the Respondent's argument that carrying out a night shift was not a normal day to day activity. Lady Justice Smith considered the case of Patterson v Metropolitan Police. Her Ladyship considered that skilled activities that required specialist tools to craft fine objects would not qualify as normal day to day activities (i.e. the activities carried out by silversmiths or watchsmiths). The significance of Patterson was that :

"it is relevant to consider whether they are limited in an activity which is to be found across a range of employment situations. It is plainly not to refer to the special skill case as the silversmith or watchmaker who is limited in some activity that the use of their special tools particularly requires... It does though, in our view, enable a Tribunal to take account of an adverse effect that is attributable to a work activity that is normal in the sense that it is found in a range of different work situations."

Lady Justice Smith stated that she agreed with HHJ Birtles in Bourne v ECT Bus CIC that driving a bus for an eight hour shift was not a normal day to day activity.

Applying the facts to the present case Lady Justice Smith stated that there were many occupations where working a night shift was perfectly normal and that it was not necessary to show that the majority of the population would be at work. It was enought that a significant number of them would be. Working a night shift was therefore a normal day to day activity.

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Comment

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This case confuses the question of what is a normal day to day activity. Although Lady Smith purportedly agrees with Patterson it is difficult to identify why her Ladyship considers that driving a bus (as in Bourne v ECT Bus CIC) would not be a normal day to day activity whereas taking an exam for promotion (as in Patterson) would be. Most people drive vehicles far more regularly than they take exams.